Yara East Africa Limited v Thirikwa Kamau T/A Muguna General Enterprises [2018] KEHC 10169 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 386 OF 2010

YARA EAST AFRICA LIMITED............................................................PLAINTIFF

VERSUS

THIRIKWA KAMAU t/a MUGUNA GENERAL ENTERPRISES...DEFENDANT

RULING

1. The notice of motion dated 18th May 2017, is filed by Thirikwa Kamau t/a Muguna General Enterprises, the defendant which seeks the entry of judgment in its favour for ksh 2,418,050. With interest at 14% from the date of the debt.

2. That application is premised on the alleged counter claim filed by the defendant.  I say the alleged counterclaim because no such counter claim has been filed as envisaged under Order 7 Rule 3 and 5 of the Civil Procedure Rules.  In particular, Rule 5 of Order 7 requires a counter claim to be accompanied by an affidavit.  The defendant did not file such an affidavit.  However, the defendant filed attached to its defence a statement showing various amounts under the heading “Response to the Plaintiff’s Accounts” which statement is reproduced here under:

RESPONSES TO THE PLAINTIFF’S ACCOUNTS UNDER ORDER 18r 2, CPR AS PRESENTED BY THE CURRENT MD MR JOHN CRASKE’S EXHIBIT ‘JC 1’ IN HIS REPLYING AFFIDAVIT DATED 24/06/2015, FILED IN COURT SAME DAY

OUTSTANDING INVOICES PLAINTIFF DEFENDANT REMARKS

1. EAF05031966

-1,848,000. 00 Invoice and cheque written for the amount by MD, Mr Lode Vanhoutte and later cancelled upon realisation that the goods had not been supplied to the Defendant – see attached cancelled cheque in his handwriting.

2. EAF05074764 910,900. 00

3. EAF05095384

277,100. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0018

4. EAF05095385

257,200. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0017

5. EAF05095386

284,000. 00 KRA/ETR 22122004/00260A OF 16/09/2005 Fiscal receipt no. 0037

6. EAF05095387

275,200. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0015

7. EAF05095388 980,000. 00

8. EAF05095446

284,000. 00 KRA/ETR 22122004/00260A OF 19/10/2005 Fiscal receipt no. 0016

9. EAF05106049

280,000. 00 KRA/ETR 22122004/00260A OF 19/10/2005 Fiscal receipt no. 0075

10. EAF05106222

302,400. 00 KRA/ETR 22122004/00260A OF 12/09/2005 Fiscal receipt no. 0002

PAYMENTS

11.

940,050. 00 Offset against transport invoices 01/VAT CERT NO. 1480839

12.

554,000. 00 Offset against transport invoices 02/VAT CERT NO. 1481056

13.

155,000. 00 Cash deposit

14.

XXXXX Cheque 102848

3. Such a statement fails to qualify as a counter claim as correctly submitted by the plaintiff’s learned counsel.  The Blacks Law Dictionary 8th Edition, defines counter claim as:

“a claim for relief asserted against an opposing party after an original claim has been made esp., a defendant’s claim in oppostion to or a set off against the plaintiff’s claim”.

4. The defendant’s statement, which is reproduced above, and bearing in mind that defination of counterclaim is a far cry of what can be termed as a counter claim.  There is indeed no counter claim on record, filed by the defendant.

5. It is because of the above that I agree with the submissions of the plaintiff’s learned counsel that the application is misconceived, frivolous and devoid of merit.

6. Accordingly the orders of the court are:

a.  The notice of motion dated 18 May 2017 is dismissed with costs to the plaintiff.

b.  The parties are ordered to comply with pre-trial procedure, to that end, the plaintiff and the defendant shall within 14 days from today file and serve each other with witness statements which shall be cross referenced to the bundle of their pagenated documents.

c.  At the reading of this ruling a hearing date of this suit shall be given.

DATED, SIGNED and DELIVERED at NAIROBI this20thday of September,2018.

MARY KASANGO

JUDGE

Ruling read and delivered in open court in the presence of

Court Assistant....................Sophie

........................................... for the Plaintiff

........................................... for the Defendant

MARY KASANGO

JUDGE